AG2004/7458, Transcript of Proceedings [2005] AIRCTrans 447 (22 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10380

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/7458

s.170LJ - agreement with organisations of employees (division 2)

APPLICATION BY KRAFT FOODS LIMITED AND ANOTHER
(AG2004/7458)
Metal, Engineering and Associated Industries Award 1998

MELBOURNE

10.50AM, MONDAY, 07 FEBRUARY 2005

Continued from 14/10/2004

PN1

MS K HODGSON: I appear on behalf of Kraft Foods.

PN2

MS C CHEW: I appear for the AMWU.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Chew. I can advise the parties that I am very conscious this is the second time in effect that this matter has been before me and I had hoped to be able to simply certify the agreement on this occasion without the need for another hearing. There are two factors that have prompted this particular hearing. The first is that the agreement does not appear to be signed by the AMWU. Can I take it that there has been a signature somewhere, Ms Chew, or that you could provide me with a signed version?

PN4

MS CHEW: In fact, your Honour, I have got a faxed copy. It was faxed up to me from the South Australian office and my faxed copy indicates that the Acting State Secretary, John Peter Gee, signed the agreement on 7 January 2005. I can certainly undertake to provide your Honour with a copy of that signed agreement from the union.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. It may well be that the versions provided to the Commission pre-dated that occasion. I am sorry, Ms Hodgson.

PN6

MS HODGSON: Your Honour, I was just going to indicate that I think there must have been a mishap in the mail because the version that I was sent back with the statutory declaration and that was the version filed with the Commission doesn't indeed have the signature of the union, so I apologise for that.

PN7

THE SENIOR DEPUTY PRESIDENT: That is all right. Thank you. If Ms Chew can provide me with a copy of the signed version or indeed if the two of you get your heads together, so long as someone does that, that will resolve that problem. The second and perhaps the more significant issue is that the statutory declarations indicate that the vote to endorse this agreement in its current form occurred on
8 November.

PN8

The advice from the parties to that effect, together with the agreement, was not received by the Commission until 17 January. That is some substantial period of time. I am aware that I have not sought that the parties submit a new application, but because of the gap between signing the agreement and the submission of the agreement to the Commission, the agreement is at least some 49 or 50 days outside of the time frame set in the Act. That means that I am anxious to establish whether or not there were any significant changes in the makeup of the workforce over that period of time and indeed the reason for the delay in advising the Commission of this revised agreement.

PN9

MS HODGSON: Your Honour, if I could just step through, I guess, a brief overview which I hope will cover up on most of the points that have just been raised. As you know, we were before you on 14 October where there are a number of issues identified with the original form of the agreement. That agreement was subsequently revised with three of the clauses being deleted and the fourth clause being amended. That clause now is 28.3 in relation to training leave.

PN10

The revised version of the agreement was circulated for employees on 21 October and a final vote of employees was held on 8 November. Now, I should just indicate that there are six employees who this agreement covers and those six employees have remained constant since the commencement of negotiations and are still the same employees engaged by the company at this date.

PN11

The revised agreement was signed by the company on 8 November and the company had prepared a statutory declaration dated 11 November. The AMWU statutory declaration is dated 7 January, which I received on 13 January and certainly that was the date that I lodged the documents with the Commission.

PN12

THE SENIOR DEPUTY PRESIDENT: I see. All right, but you are saying the same six employees are covered by the agreement?

PN13

MS HODGSON: That is correct, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Chew, do you agree with that time line?

PN15

MS CHEW: Unfortunately, I have had limited instructions, as these were faxed to me on Friday. I haven't had the opportunity to re-contact the organiser to confirm a few details, but I am sure the AMWU would support the submissions made by Ms Hodgson. I can certainly undertake to clarify some of these details with the relevant organiser, but he has been out of phone contact this morning.

PN16

THE SENIOR DEPUTY PRESIDENT: All right. Ms Chew, would you be able to, in addition to perhaps either you or Ms Hodgson providing me with a signed copy of the agreement, Ms Chew, perhaps I could ask that you simply confirm your agreement with the advice provided to me by Ms Hodgson in terms of the time lines. I appreciate the changes that were made to the agreement. I can confirm to the parties now that if I am provided with advice that confirms the time lines and the makeup of the workforce as an agreed matter between the parties, then I would propose to certify the agreement.

PN17

It appears to me that the agreement, in its revised form, meets all of the necessary prerequisites for certification. I would propose then to certify it from the date upon which I receive that information. That certificate would then be sent out to the parties. The certification of the agreement is predicated in some measure on some of the answers given to me back on 14 October relative to the earlier version, because I am taking it that the parties endorse those earlier answers.

PN18

MS HODGSON: That is correct, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: Ms Hodgson, are you happy with that approach?

PN20

MS HODGSON: That suits me perfectly, thank you, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Chew, are you happy with that approach?

PN22

MS CHEW: Yes. Thank you, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: As soon as you can provide that information to me, I am going to be able to certify the agreement. If perchance there was a problem in terms of the reconciliation of the information provided to me by Ms Hodgson with that to be provided by the AMWU, then I can assure you that I won't refuse to certify the agreement without giving the parties the opportunity for a take three, in terms of a third hearing.

PN24

On that basis, I will simply indicate that as I am optimistic that this will conclude the matter, I will congratulate the parties on reaching this agreement and hope that it operates to benefit both the employer and the employees. I will adjourn the matter accordingly.

PN25

MS CHEW: Thank you, your Honour.

<ADJOURNED ACCORDINGLY [10.57AM]